IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )

v. ) I .D. No. 1509010754 ) CALVIN HOOKER
, ) ) Defendant. )

Date Submitted: March 3 , 202 3 Date Decided: March 29 , 202 3

ORDER

Upon consideration of Defendant ’s pro se Motion for Postconviction Relief 1

(“Postconviction Motion”), “ Motion for Appointment of Counsel Under R 61(e)” 2

(“Motion for Appointment of Counsel”), and “Motion to Compel Defense Services

to Supply Defendant with Materials” 3 (“Motion to Compel”); Superior Court

Criminal Rule 61; statutory and decisional law, and the record in this case, IT

APPEARS THAT :
(1) On April 7 , 20 1 7
, a jury found Defendant guilty but mentally ill of

Murder Second Degree, Aggravated Menacing, and Endangering the Welfare of a

Child, and guilty of two counts of Possession of a Deadly Weapon During the

Commission of a Felony (“PDWDCF”), Carrying a Concealed Deadly Weapon

1 D.I. 96.
2 D.I. 97.
3 D.I. 98.2

(“CCDW”), and Resisting Arrest. 4

(2) By Order dated September 9 , 20 1 7
, 5 effective September 1 4 , 20 1 5
,

Defendant was sentenced as follows: as to Murder Second Degree
, 6 46 years at
Level V, suspended after 24 years at Level V for 6 months at Level IV Home

Confinement, followed by decreasing levels of probation ; as to the first count of

PDWDCF, 5 years at Level V, suspended after 3 years at Level V for 2 years at

Level III, 7 as to the second count of PDWDCF, 5 years at Level V, suspended after

3 years at Level V for 2 years at Leve l III, 8 as to Aggravated Menacing, 9 2 years at

Level V, suspended for 1 8 months at Level III ; 10 as to CCDW, 3 years at Level V

suspended for 18 months at Level III, 11 as to Resisting Arrest, 1 year at Level V,

suspended for 2 years at Level III
, 12 and as to Endangering the Welfare of a Child
, 1

year at Level V, suspended for 2 year s at Level III

. 13 Defendant was sentenced to a

4 D.I. 75; D.I. 77.
5 D.I. 84.
6 The first 15 years of t his sentence are mandatory under 11 Del. C. § 4205 (b)(1); see also 11 Del. C. § 635. Defendant was also ordered to pay a $5000 fine . D.I. 84.
7 The first 2 years of t his sentence are mandatory under 11 Del. C. § 4205(b)(2); see also 11 Del. C. § 1447(a). Defendant’s p robation on this charge is consecut ive to his probation on the M urder Second Degree charge . D.I. 84.
8 The first 2 years of t his sentence are mandatory under 11 Del. C. § 4205(b)(2); see also 11 Del. C. § 1447(a). Defendant’s p robation on this charge is to be served consecutive to his sen tence for the first count of PDWDCF . D.I. 84.
9 Defendant was also ordered to pay a $500 fine and $250 in restitution. D.I. 84.
10 Defendant’s p robation on this charge is consecutive to the second count of PDWDCF

. D.I. 84.
11 Defendant’s p robation on this charge is consecutive to Aggravative Menacing. D.I. 84.
12 Defendant was also o rdered to pay a $100 fine. Defendant’s p robation on this charge is consecutive to CCDW

. D.I. 84.
13 Defendant was also o rdered to pay a $100 fine

. Defendant’s p robation on this charge is consecutive to R esisting A rrest

. D.I. 84.3

total of 30 years of unsuspended Level V time

. The defendant was placed in the

custody of the Delaware Psychiatric Center (“DPC”)

. (3) On September 26, 2017, Defendant, through counsel
, filed a direct

appeal to the Delaware Supreme Court

. 14 Defense counsel subsequently filed a

Notice of Voluntary Dismissal on September 29, 2017

. O n October 2, 2017
, the

Supreme Court issued its Mandate dismissing the appeal. 15

(4) Following a request by DPC, the Superior Court issued an order

transferring Defendant from the custody of DPC to DOC on February 8, 2022. 16

(5) On March 3, 2023, Defendant filed the instant motions. In his Motion

for Postconviction Relief, Defendant asserts a claim of ineffective assistance of

counsel

. 17 Specifically, he argues that his attorney, Robert Goff (“Trial Counsel”)

, failed to “take timely [a]ppeal or inform a mentally ill defendant of his rights to

appeal.” 18 Defendant also suggests that Trial Counsel “waived” his right to appeal

while he was confined at DPC and “incompetent.” 19

(6) In his Motion to Appoint Counsel, Def endant argues that he has been

deprived of access to a law library or “persons trained in law” while incarcerated. 20

14 Notice of Appeal, Case No. 392, 2017, Trans. ID 61156911.
15 D.I. 88; see also Supreme Court Mandate, Case No. 392, 2017, Trans. ID 61183451.
16 D.I. 91.
17 Id.
18 Id.
19 Id. Defendant was found guilty but mentally ill, but he was not adjudicated incompetent.
20 D.I. 97.4

He states that he was never informed of his appellate rights or his right to file a

postconviction motion and asks the Court to appoint co unsel to assist him in this

matter

. 21

(7) In his Motion to Compel, Defendant asks the Court to c ompel the Office

of Defense Services to provide him with “access to his trial evidence and transcripts”

for the purpose of filing a motion for postconviction reli ef. 22 Defendant again

alleges that he has been “denied access to all his case materials and access to all his

case materials and access to lawyers or a law library.” 23

(8) Before addressing the merits of any claim for postconviction relief, the

Court must first determine whether any of the procedural bars under Rule 61 are

applicable. 24 A motion under this Rule may be subject to summary dismissal if it is

untimely, repetitive, previously adjudicated, or procedurally defaulted. 25 Under

Rule 61(i)(1)
, a mot ion must be filed no more than “one year after the judgment of

conviction is final . . .” 26 “A judgment of conviction is final . . . 30 days after the

Superior Court imposes sentence.” 27 Here, the Court imposed its sentence on

September 8, 2017, 28 and it became final thirty days later, on October 9, 2017.

21 Id.
22 D.I. 98.
23 Id.
24 Younger v. State , 580 A.2d 552, 554 (Del. 1990).
25 Super. Ct. Crim. R. 61(i)(1)

- (4)

. 26 Super. Ct. Crim. R. 61(i)(1).
27 Super. Ct. Crim. R. 61(m).
28 D.I. 81.5

Defendant filed the instant motion on March 3, 2023, more than five years later ; 29

therefore, it is procedurally barred as untimely. Accordingly, Defendant’s Motion

for Postconviction Relief mus t be SUMMARILY DISMISSED

. (9) The Court next considers Defendant’s Motion for Appointment of

Counsel, Rule 61(e)(4) sets the applicable standard for the appointment of

postconviction counsel. 30 The rule afford s the Court discretion to appoint counsel

only if the following conditions are met:

(i) the motion is an indigent movant ’ s first timely postconviction motion and request for appointment of counsel; (ii) the motion seeks to set aside a judgment of convictio n after a trial that has been affirmed by final order upon direct appellate review; (iii) the motion sets forth a substantial claim that the movant received ineffective assistance of trial or appellate counsel; (iv) the motion sets forth a substantial clai m that the movant is in custody in violation of the United States Constitution or the Delaware Constitution; (v) granting the motion would result in vacatur of the judgment of conviction for which the movant is in custody; and (vi) specific exceptional cir cumstances warrant the appointment of counsel. 31

The Rule requires that all conditions stated therein be met, so where a defendant fails

to meet one condition, he will be ineligible for appointment of postconviction

counsel. Defendant’s motion for appoin tment of counsel fails because it is untimely,

and the Supreme Court did not affirm his conviction on direct appeal. Accordingly,

Defendant’s Motion for Appointment of Counsel is DENIED

.

29 D.I. 96.
30 Super. Ct. Crim. R. 61(e)(4).
31 Id.6

(10) With respect to Defendant’s Motion to Compel, the Court will treat i t
as a motion for expansion of the record under Rule 61(g). Under the R ule, “[t]he

judge may direct that the record be expanded by the parties by the inclusion of

additional materials relevant to the determination of the merits of the motion.” 32

Because Defendant’s Motion for Postconviction Relief is subject to summary

dismissal, the Court finds that an expansion of the record is not warranted at this

time. Accordingly, Defendant’s Motion to Compel is DENIED

. NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Postconviction Relief is SUMMARILY DISMISSED , Defendant’s

Motion for Appointment of Counsel is DENIED , and Defendant’s Motion to

Compel is DENIED

.

/ s/ Jan R. Jurden Jan R. Jurden, President Judge

c c: Original to Prothonotary Annemarie H. Puit
, DAG Calvin Hooker ( SBI# 00610190 )

32 Super. Ct. Crim. R. 61(g).